FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Seminole County,
Kenneth R. Lester, Jr., Judge - Case No. 591998CF003341A000XX
Vincent Viggiano, Jr., Capital Collateral Regional Counsel,
Julissa R. Fontán, Maria E. DeLiberato, and Chelsea
Shirley, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida, for Appellant.
Jo Bondi, Attorney General, Tallahassee, Florida, and Doris
Meacham, Assistant Attorney General, Daytona Beach, Florida,
case is before the Court on appeal by Michael Reynolds from
an order denying a motion to vacate sentences of death under
Florida Rule of Criminal Procedure 3.851. Because the order
concerns postconviction relief from sentences of death, this
Court has jurisdiction under article V, section 3(b)(1), of
the Florida Constitution. For the reasons explained below, we
affirm the circuit court's denial of relief.
AND PROCEDURAL BACKGROUND
detailed the underlying crimes in Reynolds's direct
appeal. Reynolds v. State (Reynolds I), 934
So.2d 1128, 1135-39 (Fla. 2006). For the purposes of this
proceeding, it is relevant that Reynolds was convicted for
the first-degree murders of Robin and Christina Razor, along
with the second-degree murder of Danny Privett and the
burglary of a dwelling with armed battery. Id. at
penalty phase, Reynolds waived his right to present
mitigating evidence. Outside the presence of the jury,
Reynolds was advised of his right to present mitigation
evidence, but he waived that right after conferring with
counsel at length. Moreover, the trial court conducted a
thorough colloquy to ensure that Reynolds understood the
rights that he was waiving and even recessed for one day,
giving Reynolds the opportunity to fully consider his
decision. Reynolds v. State (Reynolds II),
99 So.3d 459, 493-97 (Fla. 2012). Concerning his waiver,
Reynolds explained his decision:
I don't want to present a mitigating case here
because there's no such thing. I mean, Your
Honor, it's a waste of time because I have [no
mitigators]. I've been locked up all my
. . . I have no mitigating, I have nothing
that's gonna dictate against my record, and I know that
the final outcome of this is that I'm gonna go to death
row, and I would wish, if you would, and if y'all
would honor that and please let me get this done and get up
the road. And that's about the best way I can
say it, Your Honor. I'm ready to go.
Id. at 493-94 (alteration in original). Trial
counsel swore in an affidavit that Reynolds waived
mitigation, "at least in part, because he did not think
there was any chance of convincing six jurors to vote for
life, and did not want to subject his sisters to the stress
of testifying before a jury."
pretrial motion, Reynolds moved for the use of a special
verdict form containing jury factfinding on aggravation. The
trial court denied that motion. Moreover, in reading the
instructions, the trial court informed the jury that
"the final decision as to what punishment shall be
imposed is the responsibility of the judge." Yet, the
trial court explained that it could reject their advisory
recommendation "only if the facts [were] so clear and
convincing that virtually no reasonable person could
differ." The trial court also informed the jury that
"the law require[d] the court to give great weight"
to the recommendation.
deliberation, the jury unanimously recommended death on each
count of first-degree murder.
Spencer hearing, trial counsel filed mitigation
with the trial court that it would have presented at the
penalty phase-absent Reynolds's waiver of that right. The
trial court conducted the Spencer hearing. As a
result, the trial court found the following aggravators
proven beyond a reasonable doubt and afforded great weight to
each: for the murder of Robin Razor, the trial court found
four aggravators-(1) Reynolds's previous conviction for
another capital felony or felony involving use or threat of
violence to a person; (2) Reynolds committed the murder while
engaged in, or the accomplice to, or attempting to commit, a
burglary; (3) the murder was committed for the purpose of
avoiding a lawful arrest; and (4) the murder was especially
heinous, atrocious, or cruel (HAC)-and for the murder of
Christina Razor, the trial court found the same four
aggravators, along with a fifth aggravator-the victim of the
murder was a person less than twelve years old. On each count
of first-degree murder, the trial court found the existence
of four statutory mitigators and afforded little weight to
each: (1) Reynolds was gainfully employed; (2) Reynolds
manifested appropriate courtroom behavior; (3) Reynolds
cooperated with law enforcement; and (4) Reynolds had a
difficult childhood, including various
subparts. In accordance with Muhammad v.
State, 782 So.2d 343 (Fla. 2001), the trial court did
not afford great weight to the unanimous jury recommendation
because the jury did not hear the mitigation. After weighing
the substantial aggravation against the minimal mitigation,
the trial court sentenced Reynolds to death for the murders
of Robin and Christina Razor.
appealed his convictions and sentences to this Court, and we
affirmed. Reynolds I, 934 So.2d at 1161. His
petition for writ of certiorari was denied by the United
States Supreme Court on January 8, 2007. Reynolds v.
Florida, 549 U.S. 1122 (2007). Pursuant to Florida Rule
of Criminal Procedure 3.851, Reynolds filed his initial
motion for postconviction relief, raising several claims.
After an evidentiary hearing, the circuit court denied each
claim, which we affirmed along with denying his petition for
writ of habeas corpus. Reynolds II, 99 So.3d at 501.
Hurst v. State (Hurst), 202 So.3d 40 (Fla.
2016), cert. denied, 137 S.Ct. 2161 (2017), Reynolds
filed the instant successive motion to vacate his sentences
of death. After a case management conference on March 2,
2017, the circuit court denied Reynolds's successive
motion in a subsequent written order.
successive postconviction motion, Reynolds raises two claims:
(1) his death sentences violate the Sixth Amendment in light
of Hurst and Hurst v. Florida, 136 S.Ct.
616 (2016); and (2) his death sentences violate the Eighth
Amendment under Caldwell v. Mississippi, 472 U.S.
320 (1985), and must be vacated in light of Hurst,
Hurst v. Florida, and Perry v. State, 210
So.3d 630 (Fla. 2016). These issues present purely legal
questions, which we review de novo. E.g., Mosley
v. State, 209 So.3d 1248, 1262 (Fla. 2016).
Amendment Hurst Claim
contends that the circuit court erred in denying his
successive motion for postconviction relief pursuant to
Hurst under the Sixth Amendment.
death sentences became final when the Supreme Court denied
his writ of certiorari on January 8, 2007. Reynolds v.
Florida, 549 U.S. 1122. Because the sentences became
final after Ring v. Arizona, 536 U.S. 584 (2002),
Hurst applies retroactively to this case.
E.g., Mosley, 209 So.3d at 1274-83
(applying Hurst retroactively to a
post-Ring, postconviction defendant). In
Hurst, we held "that in addition to unanimously
finding the existence of any aggravating factor, the
jury must also unanimously find that the aggravating factors
are sufficient for the imposition of death and
unanimously find that the aggravating factors
outweigh the mitigation before a sentence of death
may be considered by the judge." 202 So.3d at 54.
Further, we concluded that Hurst error is capable of
harmless error review. Id. at 66-68; see,
e.g., King v. State, 211 So.3d 866, 889 (Fla.
2017). Accordingly, we must decide whether Reynolds's
Hurst error was harmless beyond a reasonable doubt.
E.g., Davis v. State, 207 So.3d 142, 174
Hurst, we explained our standard for harmless error
Where the error concerns sentencing, the error is harmless
only if there is no reasonable possibility that the error
contributed to the sentence. Although the harmless error test
applies to both constitutional errors and errors not based on
constitutional grounds, "the harmless error test is to
be rigorously applied, " and the State bears an
extremely heavy burden in cases involving constitutional
error. Therefore, in the context of a Hurst v.
Florida error, the burden is on the State, as the
beneficiary of the error, to prove beyond a reasonable doubt
that the jury's failure to unanimously find all the facts
necessary for the imposition of the death penalty did not
contribute to Hurst's death sentence in this case. We
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a device
for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus is
on the effect of the error on the trier-of-fact.
"The question is whether there is a reasonable
possibility that the error affected the [sentence]."
202 So.3d at 68 (citations omitted) (alteration in original)
(quoting State v. DiGuilio, 491 So.2d 1129,
1137-38 (Fla. 1986)). Under this standard, our harmless error
analyses in the wake of Hurst have varied due to the
individualized, case-by-case approach. However, we have
conducted these analyses within the same general framework
we look to whether the jury recommendation was unanimous.
See, e.g., Kaczmar v. State, 228 So.3d 1, 9
(Fla. 2017); Jones v. State, 212 So.3d 321, 343-44
(Fla. 2017); King, 211 So.3d at 890; Davis,
207 So.3d at 174-75. Here, the jury recommendation was
unanimous. Although Reynolds's jury was instructed that
it was "not necessary that the advisory sentence . . .
be unanimous, " it nonetheless returned two unanimous
death sentences. See Davis, 207 So.3d at 174-75.
Reynolds attempts to analogize his case to nonunanimous
decisions such as Johnson v. State, 205 So.3d 1285
(Fla. 2016). That comparison falls flat. We have been
abundantly clear that there is a critical distinction between
unanimous and nonunanimous jury recommendations as they
pertain to Hurst error. E.g.,
Davis, 207 So.3d at 174 ("[W]e emphasize the
unanimous jury recommendations of death.").
Therefore, Reynolds's case is fundamentally different
from any nonunanimous cases where Hurst relief was
unanimous recommendation is not sufficient alone; rather, it
"begins a foundation for us to conclude beyond a
reasonable doubt that a rational jury would have unanimously
found that there were sufficient aggravators to outweigh the
mitigating factors." King, 211 So.3d at 890.
Hence, we look to other factors such as the jury
instructions. Kaczmar, 228 So.3d at 9;
King, 211 So.3d at 890-91; Davis, 207 So.3d
review of the record reveals that the trial court instructed
Reynolds's jury using Florida Standard Jury Instruction
(Criminal) 7.11. We have rejected similar Hurst
claims where defendants received Standard Jury Instruction
7.11. Kaczmar, 228 So.3d at 9; Knight v.
State, 225 So.3d 661, 682-83 (Fla. 2017);
Davis, 207 So.3d at 174. Moreover, a review of
Kaczmar, Knight, and Davis
demonstrates that the critical instructions given in those
cases were similar to those given here. The trial court here
instructed the jury, "It is your duty to . . . render to
the court an advisory sentence based upon your determination
as to whether sufficient aggravating circumstances exist to
justify the imposition of the death penalty and whether
sufficient mitigating circumstances exist to outweigh any
aggravating circumstances found to exist." See
Davis, 207 So.3d at 174 ("The instructions that
were given informed the jury that it needed to determine
whether sufficient aggravators existed and whether the
aggravation outweighed the mitigation before it
could recommend a sentence of death."). Even though
Reynolds's jury was instructed that unanimous
recommendations were not required at that time, the jury
still returned two unanimous death sentence recommendations,
similar to the circumstances that we upheld in
Kaczmar, Knight, and Davis.
See Knight, 225 So.3d at 683 ("Knight's
'jury was not informed that the finding that sufficient
aggravating circumstances outweighed the mitigating
circumstances must be unanimous, and . . . the jury did, in
fact, unanimously recommend death.' " (quoting
Davis, 207 So.3d at 174-75) (alteration in
from Reynolds's jury instructions was a mercy
instruction, which we used to support our harmless error
conclusions in Davis and
Kaczmar.Nevertheless, we have held that the failure
to give a mercy instruction alone does not necessarily make a
Hurst error harmful. Knight, 225 So.3d at
683 ("[T]he Davis jury 'was instructed that
it was not required to recommend death even if the
aggravators outweighed the mitigators, ' while
Knight's jury was not. Nonetheless, we believe that
Knight's jury received substantially the same critical
instructions as Davis's jury." (citation omitted)).
Moreover, in his briefs, Reynolds fails to mention that the
mercy instruction was not added to Standard Jury Instruction
7.11 until October 2009-before Davis and Kaczmar's
penalty phases but after Reynolds's penalty phase in
2003. In re Std. Jury Instr. in Crim. Cases-Report No.
2005-2, 22 So.3d 17, 22, 35 (Fla. 2009); Davis,
207 So.3d at 155 (penalty phase in 2011); Kaczmar,
228 So.3d at 6 (second penalty phase in 2013). For these
reasons, and in accordance with our decisions in
Davis, Kaczmar, and Knight, we can
conclude that Reynolds's "jury unanimously made the
requisite factual findings to impose death before it issued
the unanimous recommendations." Davis, 207
So.3d at 175.
we review the aggravators and mitigators. See King,
211 So.3d at 891-92; Davis, 207 So.3d at 175. Before
doing so, however, there is an important distinction between
this case and Davis that must be addressed: Reynolds
waived his right to present mitigation, while Davis did not.
At first blush, this may appear problematic, but we have
concluded that a defendant's waiver of the right "to
present mitigation to the jury during the penalty phase has
no bearing" on a cognizable Hurst claim.
Jones, 212 So.3d at 343 n.3. In Jones, we
reasoned that the refusal to present mitigation could not
give rise to a subsequent Hurst claim:
As previously stated, Jones's waiver of that right was
valid, and he "cannot subvert the right to jury
factfinding by waiving that right and then suggesting that a
subsequent development in the law has fundamentally
undermined his sentence." Mullens v. State, 197
So.3d 16, 40 (Fla. 2016), cert. denied, 137 S.Ct.
Id. Following the reasoning of Mullens,
Reynolds-similar to Jones and Mullens-waived his right to
jury factfinding on mitigation under the Sixth Amendment.
Because he waived that right, he cannot now claim a harmful
error for the lack of jury factfinding that he knowingly
waived. See Mullens, 197 So.3d at 40. Prior to
Reynolds's penalty phase, trial counsel, along with the
trial court, attempted to influence Reynolds to reverse his
decision and ensured that he was examined by a mental health
expert. Reynolds II, 99 So.3d at 485 n.9, 493-94.
Nonetheless, Reynolds chose to waive his right to present
mitigation because he considered it a "waste of
time" as he had no mitigation. Id. at 493.
Reynolds now claims that his decision was the result of his
belief that he could not convince six jurors to vote for life
and, as trial counsel noted, Reynolds's desire not to
"subject his sisters to the stress of testifying before
a jury." Yet the reason that Reynolds waived mitigation
is not pertinent to this analysis under Mullens and
Jones. Instead, the dispositive fact concerning
Reynolds's waiver is that he knowingly and intelligently
waived his right to jury factfinding on mitigation. See
Mullens, 197 So.3d at 39-40 ("[W]e fail to see how
Mullens, who was entitled to present mitigating evidence
to a jury as a matter of Florida law even after he pleaded
guilty and validly waived that right, can claim
there was not a complete absence of mitigation. Despite his
waiver, the trial court considered Reynolds's limited
mitigation. As a result, the trial court found four
mitigators and afforded little weight to each. Furthermore,
Reynolds's waiver was factually less problematic than
other waivers that we have upheld. For instance, in
Kaczmar, a jury returned an eleven-to-one
recommendation for death after hearing mitigation. 228 So.3d
at 5. However, a second penalty phase jury returned a
unanimous recommendation on remand after the defendant waived
mitigation. Id. at 6. Despite this fact, we found
the Hurst error harmless and denied relief.
Id. at 9. It follows that Reynolds's decision to
waive mitigation does not constitute a per se harmful
Hurst error. See Jones, 212 So.3d at 343
& n.3; Kaczmar, 228 So.3d at 9.
back to the comparison between aggravators and mitigators, we
have stated that "it must be clear beyond a reasonable
doubt that a rational jury would have unanimously found that
there were sufficient aggravating factors that outweighed the
mitigating circumstances." Davis, 207 So.3d at
174. Here, there were four and five aggravators found in the
murders of Robin and Cristina Razor, respectively. Although
the trial court found certain mitigating factors, those
circumstances could not have affected the jury because
Reynolds waived presentation of mitigation to his jury. Even
leaving aside the aggravators that could arguably require a
factual finding by the jury, the aggravation here necessarily
outweighed the mitigation. Consequently, there is no
reasonable dispute as to whether the aggravation outweighed
the mitigation, and the jury correspondingly returned death
recommendations by twelve-to-zero votes.
we look at the facts of the case. See King, 211
So.3d at 891-92. Here, as Privett relieved himself, Reynolds
smashed his head with a cinder block. Reynolds I,
934 So.2d at 1135-36, 1157. Then, Reynolds proceeded to kill
Christina and Robin Razor-an eleven-year-old girl and her
mother-by beating and stabbing them to death because, in
Reynolds's words, "with [his] record [he]
couldn't afford to leave any witnesses."
Id. The "egregious facts of this case"
firmly buttress the conclusion that the Hurst error
was harmless beyond a reasonable doubt. See, e.g.,
Davis, 207 So.3d at 175.
we affirm and conclude that "this is one of those rare
cases in which the Hurst error was harmless beyond a
reasonable doubt." King, 211 So.3d at 890;
see also Knight, 225 So.3d at 683; Davis,
207 So.3d at 175.
Amendment Caldwell Claim
also contends that the circuit court erred in denying his
successive motion for postconviction relief pursuant to
Hurst under the Eighth Amendment. Specifically,
Reynolds argues that his sentences violated the Eighth
Amendment under Caldwell. To date, we have not
expressly addressed a Caldwell challenge to Standard
Jury Instruction 7.11 brought under
Hurst; thus, we must determine if a legal basis
exists for these types of "Hurst-induced
Caldwell claims." We have labeled these as
Hurst-induced Caldwell claims because that
distills the essence of the challenge: Hurst and its
progeny render the previous Standard Jury Instruction
violative of Caldwell.
introductory matter, it is necessary to review the
jurisprudential development of this issue, which began in
Florida long before Caldwell. In Blackwell v.
State, 79 So. 731 (Fla. 1918), we held that it was
reversible error for a prosecutor to make comments that
"lessen [a jury's] estimate of the weight of their
responsibility, and cause them to shift it from their
consciences to the Supreme Court." Id. at 736.
There, the prosecutor stated, "If there is any error
committed in this case, the Supreme Court, over in the
capital of our state, is there to correct it, if any error
should be done." Id. at 735. Despite an
objection, the trial court refused to correct that statement
and expressly approved of it, which we reversed. Id.
at 735-36. We noted that the "purpose and effect of this
remark was to suggest to the jury that they need not be too
greatly concerned about the result of their
deliberation" because this Court would be waiting in the
wings to correct any errors. Id.
later, in Pait v. State, 112 So.2d 380, 383-86 (Fla.
1959), we reached a similar outcome on analogous facts. Among
other statements, the prosecutor there told the jury,
"This is the last time the People of this State will try
this case in this court. Because whatever you do, the People
have no right of appeal. They are done. This is their day.
But he may have another day; he has an appeal."
Id. at 383. We noted that the prosecutor's
comment "incorrectly stated the law" and was a type
of situation when a statement "so deeply implant[ed]
seeds of prejudice or confusion that even in the absence of a
timely objection at the trial level it [became] the
responsibility of this court to point out the error" and
reverse. Id. at 384. We concluded that it was
impossible for us, as an appellate ...